The East Hampton Town Zoning Board of Appeals ruled on two controversial matters on April 9 with a voting pattern unusual for this board.
Members voted 4-1 to grant several variances and a natural resources special permit to Morgan Neff, which will allow him to keep, unchanged, two of his seven cottages, known as Millionaires Row, on Fort Pond in Montauk.
The board’s concern in granting the requested variances, in particular for one small cottage that is close to the water and straddles two different flood zones, was that it might be jeopardizing East Hampton Town residents’ ability to get flood insurance through the Federal Emergency Management Agency.
JoAnne Pahwul, assistant director of the Planning Department, had cautioned the board in a February memo that FEMA flood insurance is a cooperative program between the agency and local communities, predicated on the idea that the communities themselves will discourage building in areas considered high risk for flooding. Should FEMA find that a town had failed to comply it could take harsh steps against the town, and the residents, up to and including pulling out of its part of the bargain.
Richard Whalen, arguing on behalf of Mr. Neff, told the board at the February hearing that approving the requested variances and permit would not jeopardize the town’s standing with FEMA. “It’s a tiny variance on a tiny property,” he said, and after a debate on April 9 the board concurred.
Bryan Gosman, a member, said this was the only time the issue had been raised, and that granting the requests would not set a pattern.
David Lys, the board’s newest member, noted that Mr. Neff had had a building permit for work done on the small cottage, though the permit was later rescinded. “He built what was approved,” said Mr. Lys. “This is the first time for this. I don’t think it sets a pattern.”
Alex Walter, the chairman, agreed, but wondered whether the applicant had demonstrated that denying the requests would create undue hardship. “It has to be exceptional hardship,” he said. In concluding that it was not, Mr. Walter was the lone dissenter; Mr. Gosman and Mr. Lys were joined by Don Cirillo and Lee White in approving the application.
Since Mr. Cirillo became the board’s vice chairman and Mr. Walter its chairman 16 months ago, the Z.B.A. has split 4-1 on several occasions, but Mr. Cirillo, an ardent advocate for landowners’ rights, is usually the odd man out. Such was not the case with the Neff application, nor was it in a second application, this one involving fenceposts.
Susan Kwit of 285 Kings Point Road in Springs discovered last year that neighbors were cutting through her property in order to get to the beach. Her solution was to build a 70-foot-long, six-foot high stockade fence, which runs the length of her property, right to the dune. But for the fence to be legal, the homeowner needed a natural resources special permit.
The fence did not trouble Mr. Lys, who spoke first during deliberations, but the way it got there did. “I don’t care for the reverse order,” he said — meaning building before obtaining approval. He said that the last fencepost, which was driven into the crest of the bluff, should be removed. Removing it would shorten the fence by about seven feet.
Mr. Walter, too, was unhappy that Ms. Kwit hadn’t come before the Z.B.A. before erecting the fence, and Mr. Cirillo agreed with the chairman, to a point. At the time of the public hearing on the application he had wondered why Ms. Kwit never sought other remedies, or called the police, before putting up the fence. “This seems to be the last resort being used first,” he said.
In the end, though, he agreed with Mr. Lys that the fence could stay, provided the last post was taken down. Mr. White also agreed, leaving Mr. Walter as the final speaker.
“This is a direct violation,” he said. “This is my night to be contrary, if that is the reason they put the fence up. If everyone did that, we wouldn’t have a zoning code.”
When Mr. Walter finished speaking Mr. White seemed to waver, but in the end he sided with the other three board members against the chairman’s lone dissent.
“It is just my opinion,” Mr. Walter said. “That is why we have five members.”